# M.B. RAMESH (D) BY LRS v. K.M. VEERAJE URS (D) BY LRS. & ORS

- **Citation:** [2013] 8 S.C.R. 573
- **Court:** Supreme Court of India
- **Decided:** 2013-05-03
- **Case number:** Civil Appeal No.1071 of 2006
- **Bench:** H.L. Gokhale, Ranjana Prakash Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-b-ramesh-d-by-lrs-v-k-m-veeraje-urs-d-by-lrs-ors-29362
- **Pages:** 26

## Headnote

Evidence Act, 1872 - ss. 68 and 71 - Proof of execution
A
B
of Will - Suit on the basis of a Will - Trial court and first
appellate court dismissed the suit holding that the Will was C
not proved as it did not fulfill the requirement of s. 63(c) of
Succession Act - High Court in second appeal decreed the
suit - Held: In the facts of the case, the 'Will' can be said to
have been proved with the aid of other evidence of attendant
circumstances which is permissible u/s. 71 - Suit decreed -
D
Succession Act, 1925 - s.63(c).
Will:
Examination of Will - Role of court - Held: Role of the
court is limited to examining whether the instrument E
propounded as the last Will of the deceased is or is not that
by the testator, and whether it is product of free and sound
disposing mind.
Proof of Will - Standard of evidence - Held: A Will has F
to be proved like any other document, except that the
evidence should additionally satisfy the requirements of s.63
of Succession Act and of s. 68 of Evidence Act - Succession
Act, 1925 - s.63 - Evidence Act, 1872 - s.68.
Code of Civil Procedure, 1908 - s.100 - Second appeal G
- Scope of - Held: Second appeal can be entertained even
on the question of fact - Whether a particular question is a
substantial question of law, depends on facts and
573
H
574
SUPREME COURT REPORTS
[2013] 8 S.C.R.
..
A
circumstances of each case - Construction of a document of
title or the document which is foundation of the rights of parties,
raises a question of law.
B
The respondents-plaintiffs filed suit, on the strength
of the Will executed by the testatrix and prayed for
declaration of their title to the property and for permanent
injunction, restraining the appellants-defendants from
interfering with their possession thereof. The trial court
as well as the first appellate court held that the plaintiffs
C
failed to prove the Will, as the requirement of s.63(c) of
Succession Act, 1925 was not fulfilled and dismissed the
suit. High Court, in second appeal framed question of law
as to whether the concurrent findings that plaintiffs have
not proved the Will was bad in law and the finding in that
D
regard was perverse and contrary to the evidence on
record? Deciding the question of law in favour of the
plaintiffs, the High Court decreed the suit.
The questions for consideration in the present appeal
were whether the Will of the testatrix was validly executed
and duty proved by the plaintiffs; and whether the High
Court was right in interfering in exercise of power u/s.100
CPC, into the concurrent findings of facts.
Dismissing the appeal, the Court
F
HELD: 1.1. A Will, has to be executed in the manner
required by s.63 of the Succession Act, 1925. Section 68
of the Evidence Act requires the Will to be proved by
examining at least one attesting witness. Section 7, of
the Evidence Act is another connected section "which is
G
permissive and an enabling section permitting a party to
lead other evidence in certain circumstances", and in a
way reduces the rigour of the mandatory provision of
Section 68. Section 71 is meant to lend assistance and
come to the rescue of a party who had done his best, but
H
would otherwise be let down if other means of proving
M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS 575
(D) BY LRS. & ORS.
due execution by other evidence are not permitted. At the A
same time, the section cannot be read to absolve a party
of his obligation under Section 68 of the Evidence Act
read with Section 63 of the Succession Act to present in
evidence a witness, though alive and available. [Para 16]
[587-F-H; 588-A-B]
B
Janki Narayan Bhoir vs. Narayan Namdeo Kadam 2003
(2) SCC 91: 2002 (5) Suppl. SCR 175 - referred to.
1.2. In the present case, the requirement of Section
68 of the Evidence Act is satisfied, since one attesting C
witness i.e. PW-2 was called for the purpose of proving
the execution of the Will, and he has deposed to that effect.
PW-2 has stated that he has signed the Will in the presence
of the testatrix, and she h

## Text

_Characters 0–39,896 of 50,121. This is a partial read: ask again with offset=39896 for what follows._

[2013] 8 S.C.R. 573
M.B. RAMESH (D) BY LRS.
v.
K.M. VEERAJE URS (D) BY LRS. & ORS.
(Civil Appeal No.1071 of 2006)
MAY 03, 2013
[H.L. GOKHALE AND RANJANA PRAKASH DESAI, JJ.]
Evidence Act, 1872 - ss. 68 and 71 - Proof of execution
A
B
of Will - Suit on the basis of a Will - Trial court and first
appellate court dismissed the suit holding that the Will was C
not proved as it did not fulfill the requirement of s. 63(c) of
Succession Act - High Court in second appeal decreed the
suit - Held: In the facts of the case, the 'Will' can be said to
have been proved with the aid of other evidence of attendant
circumstances which is permissible u/s. 71 - Suit decreed -
D
Succession Act, 1925 - s.63(c).
Will:
Examination of Will - Role of court - Held: Role of the
court is limited to examining whether the instrument E
propounded as the last Will of the deceased is or is not that
by the testator, and whether it is product of free and sound
disposing mind.
Proof of Will - Standard of evidence - Held: A Will has F
to be proved like any other document, except that the
evidence should additionally satisfy the requirements of s.63
of Succession Act and of s. 68 of Evidence Act - Succession
Act, 1925 - s.63 - Evidence Act, 1872 - s.68.
Code of Civil Procedure, 1908 - s.100 - Second appeal G
- Scope of - Held: Second appeal can be entertained even
on the question of fact - Whether a particular question is a
substantial question of law, depends on facts and
573
H
574
SUPREME COURT REPORTS
[2013] 8 S.C.R.
..
A
circumstances of each case - Construction of a document of
title or the document which is foundation of the rights of parties,
raises a question of law.
B
The respondents-plaintiffs filed suit, on the strength
of the Will executed by the testatrix and prayed for
declaration of their title to the property and for permanent
injunction, restraining the appellants-defendants from
interfering with their possession thereof. The trial court
as well as the first appellate court held that the plaintiffs
C
failed to prove the Will, as the requirement of s.63(c) of
Succession Act, 1925 was not fulfilled and dismissed the
suit. High Court, in second appeal framed question of law
as to whether the concurrent findings that plaintiffs have
not proved the Will was bad in law and the finding in that
D
regard was perverse and contrary to the evidence on
record? Deciding the question of law in favour of the
plaintiffs, the High Court decreed the suit.
The questions for consideration in the present appeal
were whether the Will of the testatrix was validly executed
and duty proved by the plaintiffs; and whether the High
Court was right in interfering in exercise of power u/s.100
CPC, into the concurrent findings of facts.
Dismissing the appeal, the Court
F
HELD: 1.1. A Will, has to be executed in the manner
required by s.63 of the Succession Act, 1925. Section 68
of the Evidence Act requires the Will to be proved by
examining at least one attesting witness. Section 7, of
the Evidence Act is another connected section "which is
G
permissive and an enabling section permitting a party to
lead other evidence in certain circumstances", and in a
way reduces the rigour of the mandatory provision of
Section 68. Section 71 is meant to lend assistance and
come to the rescue of a party who had done his best, but
H
would otherwise be let down if other means of proving
M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS 575
(D) BY LRS. & ORS.
due execution by other evidence are not permitted. At the A
same time, the section cannot be read to absolve a party
of his obligation under Section 68 of the Evidence Act
read with Section 63 of the Succession Act to present in
evidence a witness, though alive and available. [Para 16]
[587-F-H; 588-A-B]
B
Janki Narayan Bhoir vs. Narayan Namdeo Kadam 2003
(2) SCC 91: 2002 (5) Suppl. SCR 175 - referred to.
1.2. In the present case, the requirement of Section
68 of the Evidence Act is satisfied, since one attesting C
witness i.e. PW-2 was called for the purpose of proving
the execution of the Will, and he has deposed to that effect.
PW-2 has stated that he has signed the Will in the presence
of the testatrix, and she has also signed the Will in his
presence. However his evidence was silent on the issue D
as to whether the testatrix executed the Will in the
presence of another attesting witness and whether he also
signed as attesting witness in the presence of the testatrix.
Section 63 (c) of the Succession Act very much lays down
the requirement of a valid and enforceable Will that it shall E
be attested by two or more witnesses, each of whom has
seen the testator sign or affix his mark to the Will, and each
of the witnesses has signed the Will in the presence of ·
the testator. A Will has to be proved like any other
document except that evidence tendered in proof of a Will
F
should additionally satisfy the requirement of Section 63
of the Succession Act, apart from the one under Section
68 of the Evidence Act. [Para 17] (589-C-G]
R. Venkatachala Iyengar vs. B N. Thimmajamma AIR
1959 SC 443: 1959 Suppl. SCR 426; Smt. Jaswant Kaur G
vs. Smt Amrit Kaur AIR 1977 SC 74: 1977 (1) SCR 925 -
relied on.
1.3. In the present case, the fact that the second
attesting witness was present at the time of execution of H
576
SUPREME COURT REPORTS
[2013] 8 S.C.R.
A the Will was not contested by the defendants by putting
the question to PW2 that the other attesting witness was
not present when the Will was executed. Wherever the
opponent declines to avail himself of the opportunity to
put his essential and material case in cross-examination,
8
it must follow that he believed that the testimony given
could not be disputed at all. It is a rule of essential justice.
[Para 20) [593-F-H]
c
A.E.G. Carapiet vs. A. Y. Derderian AIR 1961 Calcutta
359 - referred to.
1.4. It is true that in the present case, there is no
specific statement by PW2 that he had seen the other
attesting witness sign the Will in the presence of the
testatrix, but he has stated that the other attesting witness
had also signed the document. He has proved his
D signature, and on the top of it, he has also stated in the
cross-examination that the other witness, the testatrix
himself and one 'S' and the writer of the Will were all
present while writing the Will on 24.10.1943 which was
registered on the very next day. This statement by
E implication and inference will have to be held as proving
the required attestation by the other witness. This
statement alongwith the attendant circumstances placed
on record would certainly constitute proving of the Will
F
by other evidence as permitted by Section 71 of the
Evidence Act. [Para 21) [594-E-G]
Maha/axmi Bank Limited vs. Kamkhya/al Goenka AIR
1958 Assam 56 - referred to.
1.5. While arriving at the finding as to whether the Will
G was duly executed, the Court must.~~tisfy its con.science
having regard to the totality of circumstances. The
Court's role in matters concerning the Wills is limited to
examining whether the instrument propounded as the
last Will of the deceased is orjs not that by the testator,
H and whether it is the product of the free and sound
M.B. RAMESH (0) BY LRS. v. K.M. VEERAJE URS 577
(D) BY LRS. & ORS.
disposing mind. [Para 24J [597-C-E]
R. Venkatachala Iyengar vs. B N. Thimmajamma AIR
1959 SC 443: 1959 Suppl. SCR 426; Smt. Jaswant Kaur
vs. Smt Amrit Kaur AIR 1977 SC 74: 1977 (1) SCR 925;
Gurdev Kaur vs. Kaki 2006 (1) SCC 546 - relied on.
Vishnu Ramkrishana vs. Nathu Vithal AIR 1949 Bombay
266 - referred to.
A
B
1.6. In the present matter, the issue with respect to
the due execution of the Will was decided by the trial c
court, as well as by the first appellate court on the basis
of an erroneous interpretation of the evidence on record
regarding the circumstances attendant to the execution
of the Will. The property mentioned in the Will is
admittedly ancestral property of the testatrix. She had to 0
face a litigation, initiated by her husband, to retain her title
and possession over this property. Besides, she could
get the amounts for her maintenance from her husband
only after a court battle, and thereafter also she had to
enter into a correspondence with the appellant to get E
those amounts from time to time. The appellant is her
stepson whereas the respondents are sons of her
cousin. She would definitely desire that her ancestral
property protected by her in a litigation with her husband
does not go to a stepson, but would rather go to the
relatives on her side. This context cannot be ignored, F
while examining the validity of the Will. [Para 24] [597-EH; 598-A]
1.7. It cannot be said that merely because the Will
was more than 30 years old, a presumption under Section G
90 of the Evidence Act, 1872 ought to be drawn that the
document has been duly executed and attested by the
persons by whom it purports to have been executed and
attested. A presumption regarding documents 30 years
old does not apply to a Will. A Will has to be proved in H
578
SUPREME COURT REPORTS
[2013] 8 S.C.R.
A
terms of Section 63 (c) of the Succession Act read with
Section 68 of the Evidence Act. [Para 15] [587-C-EJ
B
Bharpur Singh vs. Shamsher Singh 2009 (3) SCC 687:
2008 (17) SCR 517 - relied on.
1.8. Thus, the plaintiffs/respondents have proved that
the .testatrix had duly executed a Will on 24.10.1943 in
favour of the plaintiffs, and bequeathed the suit properties
to them. She got the Will registered on the very next day.
The High Court was right in holding that the findings of
C the trial and appellate court, though concurrent, were bad
in law and perverse and contrary to the evidence on
record. The suit filed by the respondents would stand
decreed. They are hereby granted a declaration of their
title to the suit property, and for a permanent injunction
D restraining the defendants from interfering with their
possession thereof. In case their possession has been
in any way disturbed, they will be entitled to recover the
possession of the concerned property, with future
mesne profits. [Para 25] [598-B-EJ
E
2. Whether a particular question is a substantial
question of law or not, depends on the facts and
circumstances of each case. The construction of a
document of title or of a document which is the
F
foundation of the rights of parties, necessarily raises a
question of law. In the present case, when the execution
of the Will and construction thereof was the subject
matter of consideration, the framing of the question of law
cannot be faulted. There is no prohibition to entertain a
second appeal even on question of fact, provided the
G court is satisfied that the findings of the courts below
were vitiated by non-consideration of relevant evidence
or by showing erroneous approach to the matter and
findings recorded in the court below are perverse. [Para
14] [586-F-H; 587-A, B-CJ
H
M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS
579
(D) BY LRS. & ORS.
Chunilal Mehta vs. Century Spinning and Manufacturing A
Company AIR 1962 SC: 1962 Suppl. SCR 549- followed.
Santosh Hazari vs. Purushottam Tiwari 2001 (3) SCC
179: 2001 (1) SCR 948; Union of India vs. Ibrahim Uddin
2012 (8) sec 148: 2012 (8) SCR 35 - relied on.
Narayanan Rajendran vs. Lekshmy Sarojini 2009 (5)
SCC 264: 2009 (2) SCR 71 - referred to.
Case Law Reference:
B
2009 (2) SCR 71
referred to
followed
relied on
relied on
relied on
Para 13
C
1962 Suppl. SCR 549
2001 (1) SCR 948
2012 (8) SCR 35
2008 (17) SCR 517
2002 (5) Suppl. SCR 175 referred to
1959 Suppl. SCR 426
1977 (1) SCR 925
Para 14
Para 14
Para 14
Para 15
Para 16
Para 17
Para 18
Para 20
Para 22
D
E
AIR 1961 Calcutta 359
AIR 1958 Assam 56
AIR 1949 Bombay 266
1959 Suppl. SCR 426
1977 (1) SCR 925
2006 (1) sec 546
relied on
relied on
referred to
referred to
referred to
relied on
relied on
relied. on
Para 23
F
Para 24
Par:i 24
Para 24
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1071 of 2006.
From the Judgment & Order dated 23.01.2004 of the High
Court of Karnataka at Bangalore in R.S.A. No. 546 of 1996.
G
H
580
SUPREME COURT REPORTS
[2013) 8 S.C.R.
A
Basava Prabhu S. Patil, B. Subrahmanya Prasad. Anirudh
B
Sanganeria for the Appellants.
Anand Sanjay M. Nuli, L.K. Sharma, V.N. Raghupathy for
the Respondents.
The Judgment of the Court was delivered by
H.L. GOKHALE J. 1. This Civil Appeal raises the question
as to whether the will of one Smt. Nagammanni was validly
executed, and whether the same was duly proved by the
c respondent no.1 and another (original plaintiffs). There is one
more connected issue raised in this appeal as to whether a
learned Judge of the High Court of Karnataka was right in
interfering in Second Appeal, into the concurrent findings of the
Trial Court and the Lower Appellate Court in exercise of High
o Court's powers under Section 100 of Code of Civil Procedure.
Facts leading to this Civil Appeal are as follows:-
2. The respondent no.1 and another, the original plaintiffs
are the sons of a cousin of one Smt. Nagammanni who died
E
on 21.11.1970. It is claimed by them that she left behind a will
executed way back on 24.10.1943, and registered with the
Sub-Registrar at Mysore, on 25.10.1943. The original plaintiffs
claimed that through the said will she has bequeathed her
property in their favour. The property referred in the will is her
F
ancestral property. The property of late Smt. Nagammanni
consisted of 11 parcels of dry land situated in village
Mallinathpuram, and 2 parcels of wet land situated in village
Kaggalli, both in taluk Mallavalli in district Mandya, State of
Karnatka. Out of these 11 parcels of dry land those at SI. Nos.2,
G
5 and 10 (from the list referred in the plaint) were 11ot covered
in the will.
3. It was the case of the original plaintiffs that they were in
possession of these parcels of land, and their possession was
sought to be disturbed by the appellant herein (original
H
M.B. RAMESH (0) BY LRS. v. K.M. VEERAJE URS 581
(0) BY LRS. & ORS. [H.L. GOKHALE, J.]
defendant no.1 and others). Smt. Nagammanni is the widow
A
of one C. Basavaraje Urs, whereas the appellant is the son of
this C. Basavaraje Urs from his second wife. After the death
of Smt. Nagammanni, the plaintiffs, as well as the defendants,
applied for entering their names in the revenue records as the
owners of the concerned lands. The Mutation Registrar however
B
passed an order on 29.3.1971, in favour of the defendants. The
plaintiffs preferred an appeal against the same to the Assistant
Commissioner Mandya. However, when they found that taking
advantage of the said order the defendant No 1 was trying to
disturb their possession over the suit properties, they were c
required to file a suit, on the basis of the will, which they filed
in the Court of Principal Civil Judge at Mandya, and which was
numbered as Suit No.32of1975. They prayed for a declaration
of their title to the suit property, and for a permanent injunction
restraining the defendants from interfering with their possession
0
thereof. Alternatively, they prayed that in case it is held that they
were not in possession, a decree be granted for recovery of
possession of the property with future mesne profits.
4. The suit was contested by the defendants, the appellant
herein, by contending that Smt. Nagammanni was not the
E
owner of the suit property, and in any case the will relied upon
by the respondents was not a valid one. It was additionally
submitted that the relations of Smt. Nagammanni and the
appellant were cordial, and the claimed will must have been
revoked, which revocation was being suppressed by the
F
respondents.
5. The learned trial judge raised in all ten issues. The first
out of these issues was whether the plaintiffs proved that the
suit property rightly belonged to Smt. Nagammanni, and the
G
learned Judge answered it in the affirmative. This finding has
not been disturbed by the fist appellate court, nor seriously
contested in the present Civil Appeal also. It is the second issue
framed by the trial judge which is the crucial one, namely,
whether the plaintiffs prove that Smt. Nagammanni executed a
H
SUPREME COURT REPORTS
[2013] 8 S.C.R.
A
registered will dated 24.10.1943 in favour of the plaintiffs, and
bequeathed the suit properties to them.
6. The plaintiff no.1 (PW-1) examined himself in support
of his case. He examined three more witnesses in support, out
8
of whom the second witness P. Basavaraje Urs (PW-2) is the
most relevant one. The defendants examined three witnesses
though nothing much turns on their evidence. Documentary
evidence was also produced by both the parties, which has
been considered by the courts below. The respondent no.1 /
plaintiff identified the signatures made by Smt. Nagammanni
C at two different places on the will (exhibit P-3). Those signatures
were marked as P-3 (a) and P-3(d). While cross-examining
him, the appellant produced two inland letters written by Smt.
Nagammanni to claim that their relations had become cordial,
but it must also be noted that therein she had claimed her
D maintenance amount from the appellant. The respondent no.1
-identified the signatures of Smt. Nagammanni on those two
letters, and they were marked as Exhibits 04 and 05. Theses
-signatures were clearly comparable with her signatures on the
will. This was accepted by the learned trial judge by observing
E that "on a comparison of the signatures I find there is some
force in this contention. The signatures tally". This finding of the
trial judge is neither disturbed by the first appellate court nor
by the High Court.
F
7. The next witness on behalf of the respondent no.1/
plaintiff was one P. Basavaraje Urs (PW-2). He was working
as a Patel (Village Officer) at village Mallinathpuram, in district
Mandya, at the relevant time. He is an attesting witness to the
will. He produced land revenue receipts containing his
G signatures, which were marked as Exhibits P7 to P14 and
P19. He proved his own signature on the will by comparing it
with his signatures on these Exhibits P7 to P14 and P19. He
stated in his cross-examination that, apart from him, two other
persons were attesting witnesses, namely, M. Mallaraje Urs and
H Sampat lyanger. However, by the time his evidence was being
M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS 583
(D) BY LRS. & o'RS. [H.L. GOKHALE, J.]
recorded in November 1978, both of them had passed away.
A
He stated that he could identify the hand writing and signature
of M. Mallaraje Urs. The signature of M. Mallaraje Urs on the
will was marked as Exhibit P3 (h). He also identified the
signatures of Smt. Nagammanni on the will i.e. P3 (a) and P3
(d). He stated that she signed the will in his presence and he
B
also signed the same in her presence. This part of the evidence
of PW1 and PW-2 has remained undisturbed. Thus, it can be
safely said that Smt. Nagammanni has executed the will (Exhibit
P3) which also bears the signatures of PW-2 P. Basavaraje
Urs, and one M. Mallaraje Urs.
c
8. The appellants tried to dispute the validity of the will by
drawing attention of the Court to various circumstances. They
disputed the presence of P. Basavaraje Urs at the time of
signing of the will by asking him questions as to when did he
come down to Mysore on that day from Mallinathpuram, and
D
what did he do on that date. The learned trial judge, as well as
the judge of the first appellate court, has been impressed by
some of the discrepancies in this behalf appearing in his
statement, and which were highlighted by the appellant. The
fact, however, remains that PW-2 was giving his deposition
E
some 35 years subsequent to the execution of the will, and
therefore not much credence can be given to such
discrepancies in his evidence. It was also submitted on behalf
of the appellant that it was not clear as to how and when the
will was discovered by the respondents/plaintiffs herein. Further,
F
much emphasis was laid on the fact that when the will was
made by Smt. Nagammanni, she was just about 40 years of
age, and still described herself in the will as old and infirm. It
was also contended that it was surprising that though the will
was made some 35 years ago, the respondents/plaintiffs did
G
not know anything about it until the death of Smt. Nagammanni.
As far as the writing of the will is concerned, certain doubts
were raised by pointing out that the writing was not so very
continuous, and the signatures thereon appeared to have been
adjusted. The evidence of PW-2 was also sought to be assailed
H
584
SUPREME ,COURT REPORTS
[2013] 8 S.C.R.
A
by contending that he was an interested witness. It was pointed
out, for that purpose, that in an earlier suit, arising out of a
mortgage of a property of Smt. Nagammanni, he had feigned
ignorance about the place where the will was written or the
persons who were present at that time.
B
9. As far as this objection is concerned, it must be stated
and cannot be denied that in the earlier suit, PW2 had very
much deposed that he was an attesting witness to the will.
Similarly, about Smt. Nagammani describing herself as an old
C person, it must be noted that what she had stated was that she
was getting old. Such a statement by a person will always
depend upon the perception of the person concerned about the
condition of his or her health. It appears that, in view of her
strained relations with her husband, she wanted her property
to be protected, and wanted to make a provision that it should
D devolve on her relatives. It is another matter that she lived long,
thereafter. Similarly, there is no substance in the plea of the
defendant No 1 that his relations with Smt. Nagammani had
become cordial and she must have revoked the will. If that was
so, he would have surely produced such a document of
E revocation. Similarly, no issue can be made out of the
production and reliance on the will, some 35 years subsequent
to its execution. There is no dispute about Smt. Nagammani's
signature on the will, and her wishes are clear. It is only when
the properties bequeathed under the will had to be protected,
F
that the will was required to be produced and relied upon. A
will is required to be acted upon, only after the testator passes
away, and in the instant case immediately when the occasion
arose, the will was produced and relied upon. In the
circumstances, we do not find much force in any of these
G objections.
10. As against these discrepancies in the evidence of PW2, it was emphasized on behalf of the respondent no.1/plaintiff
that C. Basavaraje Urs, the husband of Smt. Nagammanni had
H earlier filed a suit against her, claiming these very properties
M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS
585
(D) BY LRS. & ORS. [H.L. GOKHALE, J.)
as his own properties and that suit came to be dismissed,
which finding was confirmed in appeal. It was also pointed out
that the appellant was the son of C. Basavaraje Urs from his
second wife, and was required to pay maintenance to Smt.
Nagammanni, as required by a Court order. It was also
submitted by the plaintiffs that the will was a document which
was more than 30 years old, and under Section 90 of Evidence
Act, the Court is expected to presume that the signature in
every part of the document is in the hand writing of the person
concerned, and that the document was duly executed.
11. The trial court accepted the submissions on behalf of
the appellant herein, and held that the plaintiffs had failed to
prove the will since it had not come in the evidence of PW-2
that Smt. Nagammanni had executed the will in the presence
A
B
c
of the second witness M. Mallaraje Urs, or that this M. Mallaraje
D
Urs had also signed the will in her presence. Thus, the
requirement of Section 63 (c) of the Indian Succession Act,
1925 ('Succession Act' for short) was not fulfilled viz. that two
or more witnesses have to see the testator sign or affix his
mark to the will, and each of the witnesses have also to sign
the will in· the presence of the testator. The Court, therefore,
decided issue no.2 against the plaintiffs and dismissed the suit.
The first appellate Court also took the same view in Regular
Appeal No. 30 of 1989, and dismissed the appeal filed by the
respondents herein.
12. The respondent/plaintiff thereafter filed a second
appeal bearing R.S.A No. 546 of 1996, wherein, a learned
Single Judge of the High Court framed the question of law in
the following words:-
"Whether the concurrent findings of the Appellate
Court that the plaintiff have not proved the will is bad in
law and the finding in that regard is perverse and contrary
to the evidence on record?"
E
F
G
The learned Single Judge decided the said question of law in
H
586
SUPREME COURT REPORTS
[2013] 8 S.C.R.
A favour of the respondents-original plaintiffs by his impugned
judgment and order dated 23.1.2004, which has led to the
present appeal by special leave. When the special leave
petition came up for consideration on 11.10.2004, this court
issued notice and directed that the status-quo as then obtaining
B be maintained. Leave to appeal was granted thereafter on
6.2.2006. We may note that an attempt was made to settle the
dispute by referring it to mediation, but that has not succeeded.
Consideration of the submissions of the rival parties:
c
13. The first submission on behalf of the appellant has
been that the learned judge of the high Court has erred by
framing the question of law, in the manner in which he has. It
was submitted that when the trial court and the first appellate
court have given a concurrent finding about the invalidity of the
D will, it was a finding of fact, and the High Couri could not have
disturbed the finding of fact by framing a question of law as to
whether the finding was bad in law, and perverse or contrary
to the evidence on record. Reliance was placed, in this behalf,
on the observations of this Court in Narayanan Rajendran Vs.
E Lekshmy Sarojini reported in 2009 (5) SCC 264. That apart,
it was submitted that in any case, the findings of the Courts
below could not in any way be categorized as perverse, since
they were not contrary to the evidence on record.
F
14. We may, however, note in this behalf that as held by a
Constitution bench of this Court in Chunilal Mehta Vs. Century
Spinning and Manufacturing Company reported in AIR 1962
SC 1314, it is well settled that the construction of a document
of title or of a document which is the foundation of the rights of
G parties, necessarily raises a question of law. That apart, as held
by a bench of three judges in Santosh Hazari Vs. Purushottam
Tiwari reported in 2001 (3) SCC 179, whether a particular
question is a substantial question of law or not, depends on the
facts and circumstances of each case. When the execution of
the will of Smt. Nagammanni and construction thereof was the
H subject matter of consideration, the framing of the question of
M.B. RAMESH (0) BY LRS. v. K.M. VEERAJE URS
587
(D) BY LRS. & ORS. [H.L. GOKHALE, J.]
law cannot be faulted. Recently, in Union of India Vs. Ibrahim
A
Uddin reported in 2012 (8) SCC 148, this Court referred to
various previous judgments in this behalf and clarified the legal
position in the following words:-
"67. There is no prohibition to entertain a second B
appeal even on question of fact, provided the Court is
satisfied that the findings of the courts below were vitiated
by non-consideration of relevant evidence or by showing
erroneous approach to the matter and findings recorded
in the court below are peNerse."
15. At the same time we cannot accept the submission on
behalf of the respondents as well that merely because the will
was more than 30 years old, a presumption under Section 90
of the Indian Evidence Act, 1872 ('Evidence Act' for short) ought
c
to be drawn that the document has been duly executed and
D
attested by the persons by whom it purports to have been
executed and attested. As held by this Court in Bharpur Singh
Vs. Shamsher Singh reported in 2009 (3) SCC 687, a
presumption regarding documents 30 years old does not apply
to a will. A will has to be proved in terms of Section 63 (c) of E
the Succession Act read with Section 68 of the Evidence Act.
16. That takes us to the crucial issue involved in the present
case, viz. with respect to the validity and proving of the
concerned will. A Will, has to be executed in the manner
F
required by S 63 of the Succession Act. Section 68 of the
Evidence Act requires the will to be proved by examining at least
one attesting witness. Section 71 of the Evidence Act is another
connected section "which is permissive and an enabling section
permitting a party to lead other evidence in certain
circumstances", as observed by this Court in paragraph 11 of G
Janki Narayan Bhoir Vs. Narayan Namdeo Kadam reported
in 2003 (2) sec .91 and in a way reduces the rigour of the
mandatory provision of Section 68. As held in that judgment
Section 71 is meant to lend assistance and come to the rescue
of a party who had done his best, but would otherwise be let H
588
SUPREME COURT REPORTS
[2013) 8 S.C.R.
A
down if other means of proving due execution by other evidence
are not permitted. At the same time, as held in that very
judgment the section cannot be read to absolve a party of his
obligation under Section 68 of the Evidence Act read with
Section 63 of the Succession Act to present in evidence a
B witness, though alive and available. The relevant provisions of
these three sections read as follows:
"Section 63 of the Succession Act
"63. Execution of unprivileged wills.- Every testator,
C
not being a soldier employed in an expedition or engaged
in actual warfare, or an airman so employed or engaged,
or a mariner at sea, shall execute his will according to
the following rules:-
D
(a)·····
(b) ·····
(c) The will shall be attested by two or more witnesses,
each of whom has seen the testator sign or affix his mark
E
to the will or has seen some other person sign the will, in
the presence and by the direction of the testator, or has
received from the testator a personal acknowledgement
of his signature or mark, or of the signature of such other
person; and each of the witnesses shall sign the will in
F
the presence of the testator, but it shall not be necessary
that more than one witness be present at the same time,
and no particular form of attestation shall be necessary. "
Section 68 of the Evidence Act
G
"68. Proof of execution of document required by law to
be attested.- If a document is required by law to be
attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose
of proving it's execution, if there be an attesting witness
H
alive, and subject to the process of the Court and capable
M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS
589
(D) BY LRS. & ORS. [H.L. GOKHALE, J.]
of giving evidence ... "
Section 71 of the Evidence Act
"71. Proof when attesting witness denies the execution.-
A
If the attesting witness denies or does not recollect the
execution of the document, its execution may be proved
B
by other evidence. "
17. In the present matter, there is no dispute that the
requirement of Section 68 of the Evidence Act is satisfied,
since one attesting witness i.e. PW-2 was called for the c
purpose of proving the execution of the will, and he has
deposed to that effect. The question, however, arises as to
whether the will itself could be said to have been executed in
the manner required by law, namely, as per Section 63 (c) of
the Succession Act. PW-2 has stated that he has signed the
0
will in the presence of Smt. Nagammanni, and she has also
signed the will in his presence. It is however contended that his
evidence is silent on the issue as to whether Smt. Nagammanni
executed the will in the presence of M. Mallaraje Urs, and
whether M. Mallaraje Urs also signed as attesting witness in
E
the presence of Smt. Nagammanni. Section 63 (c) of the
Succession Act very much lays down the requirement of a valid
and enforceable will that it shall be attested by two or more
witnesses, each of whom has seen the testator sign or affix his
mark to the will, and each of the witnesses has signed the will
in the presence of the testator. As held by a bench of three
judges of this Court (per Gajendragadkar J, as he then was)
way back in R. Venkatachala Iyengar Vs. B N. Thimmajamma
reported in AIR 1959 SC 443, that a will has to be proved like
any other document except that evidence tendered in proof of
F
a will should additionally satisfy the requirement of Section 63
G
of the Succession Act, apart from the one under Section 68 of
the Evidence Act.
18. The propositions laid down in Venkatachala Iyengar
(supra) have been followed and explained in another judgment
H
590
SUPREME COURT REPORTS
(2013] 8 S.C.R.
A of a bench of three Judges in Smt. Jaswant Kaur Vs. Smt Amrit
Kaur, reported in AIR 1977 SC 74, wherein the law has been
crystallized by Y.V. Chandrachud J (as he then was), into the
following propositions:-
B
c
D
E
F
G
H
"10. There is a long line of decisions bearing on the
nature and standard of evidence required to prove a will.
Those decisions have been reviewed in an elaborate
judgment of this Court in R. Venkatachala Iyengar v. B. N.
Thirnmajamma and Ors. [1959] Su. 1 S.C.R. 426. The
Court, speaking through Gajendragadkar J., laid down in
that case the following propositions :-
1. Stated generally, a will has to be proved like
any other document, the test to be applied being
the usual test of the satisfaction of the prudent
mind in such matters. As in the case of proof of
other documents, so in the case of proof of wills,
one cannot insist on proof with mathematical
certainty.
2. Since Section 63 of the Succession Act
requires a will to be attested, it cannot be used as
evidence until, as required by Section 63 of the
Evidence Act, one attesting witness at least has
been called for the purpose of proving its
execution, if there be an attesting witness alive and
subject to the process of the court and capable of
giving evidence.
3. Unlike other documents, the will speaks from
the death of the testator and therefore the maker
of the will is never available for deposing as to the
circumstances in which the will came to be
executed. This aspect introduces an element of
solemnity in the decision of the question whether
the document propounded is proved to be the last
will and testament of the testator. Normally, the
M.B. RAMESH (D} BY LRS. v. K.M. VEERAJE URS
591
(D} BY LRS. & ORS. [H.L. GOKHALE, J.]
onus which lies on the propounder can be taken
A
to be discharged on proof of the essential facts
which go into the making of the will.
4. Cases in which the execution of the will is
suffounded by suspicious circumstances stand on
B
a different footing. A shaky signature, a feeble
mind, an unfair and unjust disposition of property,
the propounder himself taking a leading part in the
making of the will under which he receives a
substantial benefit and such other circumstances
raise suspicion about the execution of the will. That
C
suspicion cannot be removed by the mere
assertion of the propounder that the will bears the
signature of the testator or that the testator was in
a sound and disposing state of mind and memory
at the time when the will was made, or that those
D
like the wife and children of the testator who would
normally receive their due share in his estate were
disinherited because the testator might have had
his own reasons for excluding them. The presence
of suspicious circumstances makes the initial
E
onus heavier and therefore, in cases where the
circumstances attendant upon the execution of the
will excite the suspicion of the court, the
propounder must remove a/I legitimate suspicions
before the document can be accepted as the last
F
will of the testator.
5. It is in connection with wills, the execution of
which is suffounded by suspicious cir.cumstance
that the test of satisfaction of the judicial G
conscience has been evolved. That test
emphasises that in determining the question as
to whether an instrument produced before the court
is the last will of the testator, the court is called
upon to decide a solemn question and by reason
H
A
B
c
592
SUPREME COURT REPORTS
[2013] 8 S.C.R.
of suspicious circumstances the court has to be
satisfied fully that the will has been validly
executed by the testator.
6. If a caveator alleges fraud, undue influence,
coercion etc. in regard to the execution of the will,
such pleas have to be proved by him, but even in
the absence of such pleas, the very circumstances
surrounding the execution of the will may raise a
doubt as to whether the testator was acting of his
own free will. And then it is a part of the initial onus
of the propounder to remove al.' reasonable
doubts in the matter."
19. In Janki Narayan Bhoir (supra). this Court has
explained the inter-relation between Section 63 (c) of the
D Succession Act, 1925 and Section 68 and 71 of the Evidence
Act, 1872. In that matter only one attesting witness to the will
was examined to prove the will, but he had not stated in his
deposition that the other attesting witness had attested the will
in his presence. The other attesting witness, though alive and
E available, was not examined. The Court noted the relevant facts
in para 5 of the judgment (as reported in SCC) as follows:-
F
G
H
"Prabhakar Sinkar, the attesting witness, in his
deposition stated that he did not know whether the other
attesting witness Ramkrishna Wagle was present in the
house of the respondent at the time of execution of the
will. He also stated that he did not remember as to whether
himself and Raikar were present when he put his
signature. He did not see the witness Wagle at that time;
he did not identify the person who had put the thumb
impression on the will. The scribe Raikar in his evidence
stated that he wrote the will and he also stated that he
signed on the will deed as a scribe. He further stated that
the attesting witnesses, namely, Wagle and Prabhakar
Sinkar are alive."
M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS
593
(D) BY LRS. & ORS. [H.L. GOKHALE, J.]
On this background, the Court held at the end of the para 6 of A
the judgment that "it is true that although a will is required to be
attested by two witnesses it could be proved by examining one
of the attesting witnesses as per Section 68 of the Indian
Evidence Act", but it also noted in paragraph 9 that "that one
of the requirements of due execution of a will is its attestation
B
by two or more witnesses, which is mandatory." In paragraphs
11 and 12 of the judgment, the Court noted the relevance of
Section 71 of the Evidence Act by stating that "aid of Section
71 can be taken only when the attesting witnesses who have
been called, deny or fail to recollect the execution of the
C
document to prove it by other evidence." "Section 71 has no
application when the one attesting witness, who alone has been
summoned, has failed to prove the execution of the will and the
other attesting witness though available has not been
examined." In the facts of the case, therefore, the Court held
0
that attestation of the will as required by Section 63 of the
Succession Act was not established which was equally
necessary.
20. In the present case, we may note that in para 21 of
his cross examination, P. Basavaraje Urs has in terms stated,
"Mr. Mallaraje Urs and Smt. Nagammanni, myself and one
Sampat lyanger were present while writing the will." One Mr.
Narayanmurti was also present. In para 22 he has stated that
Narayanmurti had written Exhibit 3 (will) in his own handwriting
continuously. The fact that M.Mallaraje Urs was present at the
time of execution of the will is not contested by the defendants
by putting it to PW2 that M. Mallaraje Urs was not present when
the will was executed. As held by a Division Bench of the
Calcutta High Court in a matter concerning a will, in para 10 of
A.E.G. Carapiet Vs. A. Y. Derderian reported· in [AIR 1961
Calcutta 359], ....